Memo

BILL NUMBER:S3016B

TITLE OF BILL: An act to amend the mental hygiene law and the executive law, in relation to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities

PURPOSE: This bill would amend Mental Hygiene Law (MHL) § 31.35(a) and Executive Law § 845-b to require criminal history record checks for each prospective operator, employee, or volunteer of certain providers of mental health or developmental disabilities services who will have regular and substantial unsupervised or unrestricted physical contact with clients of such providers.

SUMMARY OF PROVISIONS: Section 1 of the bill would amend MHL § 31.35(a) to clarify that criminal history background checks performed by the Office of Mental Health (OMH) and the Office of People with Developmental Disabilities (OPWDD) must include criminal history background checks for employees of providers who receive funds from or are licensed or certified to provide services to persons with mental illness or developmental disabilities. In addition, § 1 would enable OMH to perform a criminal history background check for any person over the age of 18 living in a Family Care Home that was approved by OMH on or after April 1, 2009.

Section 2 of the bill would amend Executive Law § 845-b(1) (c) to clarify that the term "criminal history information" includes information obtained from the Federal Bureau of Investigation (FBI) as a result of a national criminal history check for purposes of OMH and OPWDD.

Section 2 of the bill would also amend Executive Law §§ 845-b(3)(a), (b) and (c) to provide for the use of attestations by authorized persons and to clarify that the attestation requirement may be achieved through a single submission that is applicable to all requests made by the authorized person. It further clarifies that provisions applicable to FBI checks, which currently appear to apply only to the Department of Health (DOH), also include OMH and OPWDD, in accordance with Chapter 673 of the Laws of 2006, and makes additional technical amendments in these paragraphs.

Section 2 of the bill would also amend Executive Law § 845-b(4) to expand provisions applicable to the processing of FBI checks, which currently apply only to DOH, to include OMH and OPWDD.

Section 2 of the bill would also amend Executive Law § 845-b(5) 10 establish provisions that enable the agencies to take appropriate action, depending on the nature of the criminal history at issue, while ensuring sufficient due process protections are afforded to the provider. This section would include amendments that would enable OMH and OPWDD to take action in cases in which a natural person operator of a family care home or family based treatment program, or a person over the age of 18 residing in such home or program, have problematic criminal histories. These amendments would provide OMH and OPWDD with flexibility in cases in which an applicant has an outstanding charge that does not presumptively disqualify him or her from employment, but the disposition of the charge cannot be readily ascertained.

Section 2 of the bill would also make a technical amendment to Executive Law § 845-b(d) (5) to ensure that OMH and OPWDD have the ability to directly contact any subject individual of a criminal history background check and request' additional information in the event that the individual's criminal history information is incomplete or requires clarification.

Section 2 would also renumber and make technical, clarifying changes to the criminal history background check processes to Executive Law 845-b(5) (e) and, (f), and would add a new paragraph (h) to make a technical process clarification with respect to provisions requiring OMH and OPWDD to send a written summary notifying a provider of a subject individual's criminal history information.

This section would also repeal the opening sentence of Executive Law 845-b(6) and amend Executive Law § 845-b(11) (currently subdivision 10). The new subdivision 11 would be amended to remove the requirement that the definition of "unsupervised physical contact with clients," to be defined in regulations promulgated by the authorizing agency, must take into consideration the differences in the staffing patterns of various service models and the supervision required to ensure the safety of clients. This provision is no longer necessary, as implementing regulations for the agencies are in effect.

Section 3 of the bill would take effect on the 180th day after it shall become a law.

EXISTING LAW: Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws of 2004, requires criminal history record checks for each prospective operator, employee, or volunteer of certain mental health treatment providers who will have regular and substantial unsupervised or unrestricted physical contact with the clients of such providers. OMH and OPWDD are required to process these requests and to perform an analysis pursuant to Correction Law Article 23-A with respect to the results. After undertaking such review, OMH and OPWDD are required to summarily

advise providers whether or not the applicant can be approved for consideration. OMH and OPWDD are required to promulgate regulations that establish the standards and procedures for such criminal history record checks.

Chapter 673 of the Laws of 2006 amended these provisions and extended the authority of OMH and OPWDD pursuant to Executive Law § 845-b to request criminal history background information on a national level from the FBI.

Chapter 331 of the Laws of 2006 amended Executive Law § 845-b to authorize DOH to request both state and national criminal history information.

LEGISLATIVE HISTORY: 2009-10: S.3484 - Passed in Senate.

This proposal represents part of a bill (S.7674/A.11035) which passed the Senate and was referred to the Assembly Mental Health Committee. In the 2009 Legislative Session, the proposal has been modified to remove provisions that impacted State employees.

STATEMENT IN SUPPORT: In April of 2005, OMH and OPWDD began processing requests for criminal histories on behalf of local providers of mental hygiene, reviewing them, and responding to providers with respect to the results of its review. Over the course of implementation, several process questions and concerns arose, the answers to which were not immediately clear from the language of the statute. The proposed amendments are intended, in large part, to clarify the answers to these process questions to ensure effective implementation of the law's requirements.

Specifically, Chapter 575 requires that, for each criminal history check requested by an authorized person, a notarized attestation must be made indicating a number of elements designed to ensure that the request is justified under the law. During the implementation of the law, it became apparent that to require a notarized statement for each request submitted was unduly onerous to providers. This bill permits the use of a single attestation or affirmation from each authorized provider signed under penalty of perjury, in lieu of a notarized statement that indicates every request that it submits will meet these applicable criteria.

In addition, the bill authorizes OMH to review criminal histories of every person over the age of 18 residing in a family care home or a family based treatment program. As currently enacted, OMH is only able to review the histories of new operators of family care homes, unlike OPWDD, which is authorized to review the operators of such homes, as well as every person over the age of 18 living in the home. As residents of family care homes and family based treatment programs approved by OMH should have the same safety assurances as residents

of family care homes approved by OPWDD, this proposal would provide consistent authority for both OMH and OPWDD.

Other changes are made in the bill to address the actions OMH and OPWDD can take in the event that a natural person who operates a family care home or, family-based treatment provider, or a person over the age of 18 living in such home or program, has a problematic criminal history. Currently, it is not clear what options are available to OPWDD in cases where a problematic criminal history is revealed with respect to a person over the age of 18 who resides in the home. Furthermore, as stated above, the law does not specifically indicate that OMH has authority to obtain and review the criminal histories of a person over the age of 18 who resides in a family care home or family based treatment program. As a result, in most cases, OMH will not even know if such a person has a problematic criminal background and may be unable to take action in the event it is learned that such a problematic history exists. These amendments would address these issues, by establishing provisions that enable the agencies to take appropriate action, depending on the nature of the criminal history at issue, while ensuring that sufficient due process protections are afforded to the provider.

The bill would also create additional flexibility for the agencies wit.h respect to situations in which a criminal history contains charges for the commission of non-presumptive crimes that were placed on the record ten or more years ago, but the agency is not reasonably able to determine the disposition of such charges. Under current law, all applications that contain charges for felonies must be held in abeyance, and those with misdemeanors may be held in abeyance, until such charges are resolved. Experimentally, the agencies. have discovered that it is sometimes very difficult, if not impossible, to obtain information from courts or other sources when trying to resolve old charges. This creates particular problems for OPWDD, because the only alternatives now available to a provider when an application is placed in abeyance are to dismiss the individual or ensure constant supervision of him or her. The proposal would allow OMH or OPWDD to permit providers to make their own decisions with respect to applicants who have charges for non-presumptive crimes on their record, that are more than ten years old and the disposition of which is not readily available, if a safety assessment is performed and the provider determines that the individual does not pose an unreasonable risk to its clients.

The bill also removes the requirement established in Chapter 575 that the definition of "unsupervised contact," for purposes of temporary approval, must take into consideration the differences in staffing patterns of various service models and the supervision required to ensure the safety of clients. This language was originally included based on a fear that certain provider types with less "rich" staffing patterns would be disadvantaged if their unique characteristics were

not considered. After taking such differences into consideration, OMH and OPWDD promulgated regulations that established a definition of this term, applicable to all service types, based on the notion that a service recipient's need for safety should not be variable based upon which service setting in which he or she was receiving care. The definition has been working well, and no service types have been significantly disadvantaged in this respect, because the prompt turnaround times for criminal history reviews have diminished the need to utilize the temporary approval option. Thus, this qualifying language in the statute is not necessary.

Finally, Chapter 575 of the Laws of 2004 was further amended by Chapter 673 of the Laws of 2006, which extended the authority of OMH and OPWDD in Executive Law § 845-b to request criminal history background information on a national level from the FBI. However, also in 2006, Chapter 331 of the Laws of 2006 amended Executive Law §845-b to authorize QOH to request both State and national criminal history information. However, the bills establishing these Chapters were not reconciled, which has resulted in an awkwardly worded statute. This proposal would amend Executive Law § 845-b so that it is internally consistent, accurately reflects the roles and responsibilities of each agency to which it applies with respect to the receipt and distribution of information from the FBI, and clarifies that the provisions unique to FBI information do not apply only to DOH, but also to OMH and OPWDD.

This proposal also repeals the requirement that OMH, OPWDD and DOH adhere to previous decisions in cases in which an employee already cleared for employment leaves a particular employer and applies for employment with another, when the criminal history is unchanged and the circumstances of employment are substantially similar. This provision fails to reflect current practices where FBI checks, unlike New York State checks, do not provide for search and retain status to allow for an individual's criminal history, once hired or retained, to be continuously updated and sent to the authorized agencies. This confounds the agencies' ability to obtain up-to-date federal information on a subject individual's criminal history information. While agencies should certainly be guided by a previous decision, a. mandate to adhere to a previous determination is unduly onerous in light of the new authority to conduct FBI cheeks, where the national criminal history may have changed, but the agency may not know it unless new FBI checks are performed.

Authority for OMH and OPWDD to request FBI checks was established by Chapter 673 of the Laws of 2006, but the definition of "criminal history information" was not amended in this legislation. An expanded definition of "criminal history information" to include FBI checks was included in Chapter 331 of the Laws of 2006, which extends this authority to DOH with respect to nursing homes and home health care service agencies. This amendment clarifies that the expanded definition applies to OMH, and OPWDD as well as DOH.

BUDGET IMPLICATIONS: The proposal is expected to have a minimal fiscal impact. The provision that adds persons over the age of 18 living in OMH family care homes or family based treatment programs would only include a very small pool of individuals whose histories must be obtained and reviewed, and there would be extremely minimal associated costs in implementing the background check process. OMH pays the fee for criminal history background checks for its local providers, which represents a cost of $99 (including both State and national checks) per applicant.

EFFECTIVE DATE: The bill would take effect 180 days after enactment.

Text

STATE OF NEW YORK
________________________________________________________________________
3016--B
2011-2012 Regular Sessions
IN SENATE
February 7, 2011
___________

Introduced by Sens. HUNTLEY, BALL -- read twice and ordered printed, and
when printed to be committed to the Committee on Mental Health and
Developmental Disabilities -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
recommitted to the Committee on Mental Health and Developmental Disa-
bilities in accordance with Senate Rule 6, sec. 8 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the mental hygiene law and the executive law, in
relation to the review of criminal history information of certain
persons rendering community based services to individuals with mental
illness or developmental disabilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (a) of section 31.35 of the mental hygiene law,
as amended by chapter 575 of the laws of 2004, is amended to read as
follows:
(a) Every provider of services who contracts with, RECEIVES FUNDS
FROM, or is LICENSED, CERTIFIED, approved or IS otherwise authorized by
the office to provide services, except (1) a department facility, (2) a
hospital as defined in article twenty-eight of the public health law, or
(3) a licensed professional under title eight of the education law who
does not have employees or volunteers who will have regular and substan-
tial unsupervised or unrestricted physical contact with the clients of
such provider, and every applicant to be such a provider of services
except (i) a department facility, (ii) a hospital as defined in article
twenty-eight of the public health law, or (iii) a licensed professional
under title eight of the education law who does not have employees or
volunteers who will have regular and substantial unsupervised or unre-
stricted physical contact with the clients of such provider, shall
request that the office check, and upon such request the office shall

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03968-04-1

S. 3016--B 2

request and shall be authorized to receive from the division of criminal
justice services criminal history information, as such phrase is defined
in paragraph (c) of subdivision one of section eight hundred
forty-five-b of the executive law, concerning each (A) prospective oper-
ator, employee or volunteer of such provider who will have regular and
substantial unsupervised or unrestricted physical contact with the
clients of such provider, OR (B) OTHER PERSON OVER THE AGE OF EIGHTEEN
WHO IS TO RESIDE IN A FAMILY CARE HOME OR FAMILY BASED TREATMENT PROGRAM
APPROVED BY THE OFFICE ON OR AFTER APRIL FIRST, TWO THOUSAND TWELVE,
EXCEPT ANY PERSON RECEIVING FAMILY CARE OR FAMILY BASED TREATMENT
SERVICES, WHO WILL HAVE REGULAR AND SUBSTANTIAL UNSUPERVISED OR UNRE-
STRICTED PHYSICAL CONTACT WITH THE CLIENTS OF SUCH PROVIDER. For
purposes of this section, "operator" shall include any natural person
with an ownership interest in the provider of services.
S 2. Paragraph (c) of subdivision 1, paragraphs (a), (b) and (c) of
subdivision 3 and subdivisions 4, 5, 6, 7, 8, 9, 10, 11 and 12 of
section 845-b of the executive law, as amended by chapter 769 of the
laws of 2005, the closing paragraph of subparagraph (iii) of paragraph
(c) of subdivision 3 as amended and paragraph (b-1) of subdivision 4 as
added by chapter 673 of the laws of 2006 and subdivisions 4 and 5 as
amended by chapter 331 of the laws of 2006, are amended to read as
follows:
(c) "Criminal history information" means a record of pending criminal
charges, criminal convictions which are not vacated or reversed, and
certificates filed pursuant to subdivision two of section seven hundred
five of the correction law, and which the division is authorized to
maintain pursuant to subdivision six of section eight hundred thirty-
seven of this article. For the purposes of [criminal history information
checks authorized pursuant to article twenty-eight-E of the public
health law] THIS SECTION, criminal history information shall also
include information from the federal bureau of investigation as a result
of a national criminal history record check.
(a) A provider authorized to request a check of criminal history
information pursuant to subdivision two of this section shall designate
one OR MORE authorized [person] PERSONS, who shall request a check of
criminal history information on behalf of such provider pursuant to this
section and review the results of such check. Only such authorized
[person or his or her designee] PERSONS and the subject individual to
whom such criminal history information relates shall have access to such
information; provided, however, that criminal history information
received by a provider may be disclosed to other persons who are direct-
ly participating in any decision in regard to such subject individual;
and provided, further, that such other persons shall also be subject to
the confidentiality requirements and all other provisions of this
section[. In the case of requests made pursuant to article
twenty-eight-E of the public health law], PROVIDED, HOWEVER, THAT WITH
RESPECT TO INFORMATION OBTAINED FROM THE FEDERAL BUREAU OF INVESTIGATION
AS A RESULT OF A NATIONAL CRIMINAL HISTORY RECORD CHECK only information
authorized for disclosure under applicable federal laws shall be trans-
mitted to the provider. Each provider shall specifically identify to the
authorized agency in writing, in advance of disclosure, the authorized
person and each other such agent or employee of the provider who is
authorized to have access to the results of a check of criminal history
information pursuant to this section. Any person who willfully permits
the release of any confidential criminal history information contained

S. 3016--B 3

in the report to persons not permitted by this section to receive such
information shall be guilty of a misdemeanor.
(b) A provider requesting a check of criminal history information
pursuant to this section shall do so by completing a form established
for such purpose by the authorized agency in consultation with the divi-
sion. Such form shall include a sworn statement of the authorized
person, OR A STATEMENT SUBSCRIBED TO BY THE AUTHORIZED PERSON CONTAINING
AN AFFIRMATION OF SUCH PERSON THAT THE STATEMENTS THEREIN ARE TRUE UNDER
PENALTIES OF PERJURY, certifying OR AFFIRMING, AS APPLICABLE that:
(i) [the] EACH person for whose criminal history information a check
is requested [is] SHALL BE a subject individual for whom criminal histo-
ry information is available by law;
(ii) FOR EACH CRIMINAL HISTORY CHECK REQUESTED, the specific duties
which qualify the provider to request a check of criminal history infor-
mation SHALL BE IDENTIFIED;
(iii) the results of [such] ANY criminal history information check
MADE PURSUANT TO THIS SECTION will be used by the provider solely for
purposes authorized by law; and
(iv) the provider and its agents and employees are aware of and will
abide by the confidentiality requirements and all other provisions of
this article.
(c) A provider authorized to request a criminal history information
check pursuant to this section may inquire of a subject individual in
the manner authorized by subdivision sixteen of section two hundred
ninety-six of this chapter. Prior to requesting such information, a
provider shall:
(i) inform the subject individual in writing that the provider is
authorized or, where applicable, required to request a check of his or
her criminal history information and review the results of such check
pursuant to this section;
(ii) inform the subject individual that he or she has the right to
obtain, review and seek correction of his or her criminal history infor-
mation under regulations and procedures established by the division AND
THE FEDERAL BUREAU OF INVESTIGATION;
(iii) obtain the signed, informed consent of the subject individual on
a form supplied by the authorized agency which indicates that such
person has:
A. been informed of the right and procedures necessary to obtain,
review and seek correction of his or her criminal history information;
B. been informed of the reason for the request for his or her criminal
history information;
C. BEEN INFORMED THAT THE CRIMINAL HISTORY INFORMATION SOUGHT WILL
INCLUDE BOTH A NEW YORK STATE AND A NATIONAL CRIMINAL HISTORY INFORMA-
TION CHECK;
D. consented to such request for a report[; and
D.] WITH RESPECT TO BOTH NEW YORK STATE AND NATIONAL CRIMINAL HISTORY
INFORMATION; AND
E. supplied on the form a current mailing or home address.
Upon receiving such written consent, the provider shall receive or
obtain [two sets of] THE fingerprints of such subject individual pursu-
ant to such regulations AND PROCEDURES as may be necessary to be estab-
lished by the authorized agency in consultation with the division, and
promptly transmit them to the authorized agency.
4. Procedures for criminal history information checks by authorized
agencies. (a) The authorized agency shall pay the processing fee imposed
pursuant to subdivision eight-a of section eight hundred thirty-seven of

S. 3016--B 4

this article, and [in the case of the authorized agency pursuant to
article twenty-eight-E of the public health law,] any fee imposed by the
federal bureau of investigation, and shall promptly submit the finger-
prints and the processing fee to the division for its full search and
retain processing, and [in the case of the authorized agency pursuant to
article twenty-eight-E of the public health law,] the division shall
immediately forward the fingerprints to the federal bureau of investi-
gation for a national criminal history record check. The authorized
agency may charge a provider a fee in AN amount no greater than the fee
established pursuant to law by the division for processing such a crimi-
nal history information check, in such amounts as may be established by
the authorized agency and approved by the director of the division of
the budget, and [in the case of the authorized agency pursuant to arti-
cle twenty-eight-E of the public health law,] a fee no greater than any
fee imposed by the federal bureau of investigation. Nothing in this
section shall prohibit the authorized agency or provider from claiming
the cost of such fees and related costs, including administrative costs,
as a reimbursable cost under the medical assistance program, Medicare or
other payor, to the extent permitted by state and federal law.
(b) THE AUTHORIZED AGENCY IS AUTHORIZED TO RECEIVE CRIMINAL HISTORY
INFORMATION FROM THE DIVISION AND THE FEDERAL BUREAU OF INVESTIGATION,
AFTER THE RECEIPT OF A REQUEST PURSUANT TO THIS SECTION, IF SUCH REQUEST
IS:
(I) MADE PURSUANT TO A REQUEST BY AN AUTHORIZED PERSON ON BEHALF OF A
PROVIDER AUTHORIZED TO MAKE SUCH A REQUEST PURSUANT TO SUBDIVISION TWO
OF THIS SECTION;
(II) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH (B) OF
SUBDIVISION THREE OF THIS SECTION; AND
(III) ACCOMPANIED BY FINGERPRINTS OF THE SUBJECT INDIVIDUAL OBTAINED
PURSUANT TO THIS SECTION.
(C) The division shall promptly provide requested state criminal
history information to the authorized agency and, [in accordance with
article twenty-eight-E of the public health law, the department of
health is authorized also to receive criminal history information from
the federal bureau of investigation, after the receipt of a request
pursuant to this section if such request is:
(i) made pursuant to a request by an authorized person on behalf of a
provider authorized to make such a request pursuant to subdivision two
of this section;
(ii) accompanied by the completed form described in this section; and
(iii) accompanied by fingerprints of the subject individual obtained
pursuant to this section.
(b-1) The division] ALSO shall promptly forward a set of the subject
individual's fingerprints to the federal bureau of investigation for the
purpose of a nationwide criminal history record check to determine
whether such applicant has been convicted of a criminal offense in any
state or federal jurisdiction. The division shall forward the results of
such nationwide search to the authorized agency in the same form and
manner as the criminal history report created and provided by the divi-
sion pursuant to this section.
[(c)] (D) Criminal history information provided by the division pursu-
ant to this section shall be furnished only by mail or other method of
secure and confidential delivery, addressed to the authorized agency.
Such information and the envelope in which it is enclosed, if any, shall
be prominently marked "confidential", and shall at all times be main-
tained by the authorized agency in a secure place.

S. 3016--B 5

5. After reviewing any criminal history information provided by the
division concerning a subject individual, the authorized agency shall
take the following actions:
(a) Where the criminal history information concerning a subject indi-
vidual reveals a felony conviction at any time for a sex offense, a
felony conviction FOR ANY CRIME within the past ten years involving
violence, or a conviction for endangering the welfare of an incompetent
or physically disabled person pursuant to section 260.25 of the penal
law, OR ANY COMPARABLE OFFENSE IN ANY OTHER JURISDICTION; and in the
case of criminal history information obtained pursuant to section twen-
ty-eight hundred ninety-nine-a of the public health law, where the crim-
inal history information concerning a subject individual reveals a
conviction at any time of any class A felony; a conviction within the
past ten years of any class B or C felony, any class D or E felony
defined in article one hundred twenty, one hundred thirty, one hundred
fifty-five, one hundred sixty, one hundred seventy-eight or two hundred
twenty of the penal law; or any crime defined in sections 260.32 or
260.34 of the penal law; or any comparable offense in any other juris-
diction[,]; the authorized agency shall deny or disapprove the applica-
tion for or renewal of the operating certificate, contract, approval,
employment of the subject individual or other authorization to provide
services, or direct the provider to deny employment, as applicable,
unless the authorized agency determines, in its discretion, that
approval of the application or renewal or employment will not in any way
jeopardize the health, safety or welfare of the beneficiaries of such
services.
(b) Where the criminal history information concerning a subject indi-
vidual reveals a conviction for a crime other than one set forth in
paragraph (a) of this subdivision, the authorized agency may deny the
application or renewal, or direct the provider to deny employment of the
subject individual, [or approve or] disapprove the [prospective employ-
ee's] SUBJECT INDIVIDUAL'S eligibility for employment by the provider,
OR VOLUNTEER SERVICE WITH A PROVIDER OF SERVICE WHO CONTRACTS WITH,
RECEIVES FUNDS FROM, OR IS LICENSED, CERTIFIED, APPROVED OR IS OTHERWISE
AUTHORIZED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, consistent with article twenty-three-A of
the correction law.
(c) Where the criminal history information concerning a subject indi-
vidual reveals a charge for any felony, ANY CRIME IDENTIFIED IN PARA-
GRAPH (A) OF THIS SUBDIVISION, OR FOR ANY COMPARABLE OFFENSE IN ANOTHER
JURISDICTION, the authorized agency shall, and for any misdemeanor, OR
ANY COMPARABLE OFFENSE IN ANOTHER JURISDICTION, the authorized agency
may hold the application, renewal or employment in abeyance until the
charge is finally resolved[.], PROVIDED, HOWEVER, IF THE CRIMINAL HISTO-
RY INFORMATION CONCERNING A SUBJECT INDIVIDUAL REVEALS A CHARGE FOR ANY
CRIME NOT IDENTIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR A COMPARA-
BLE OFFENSE IN ANOTHER JURISDICTION, WHICH IS MORE THAN TEN YEARS OLD
AND WHERE INFORMATION NECESSARY TO RESOLVE THE CHARGE IS NOT READILY
AVAILABLE TO THE AUTHORIZED AGENCY, THE AUTHORIZED AGENCY MAY EITHER:
(I) HOLD THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE UNTIL THE
CHARGE IS FINALLY RESOLVED; OR
(II) ADVISE THE PROVIDER OF SERVICES THAT IT MAY ACT ON ITS OWN
DISCRETION, IF SUCH PROVIDER PERFORMS A SAFETY ASSESSMENT AND DETER-
MINES, CONSISTENT WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW,
THAT APPROVAL OF THE APPLICATION WILL NOT POSE AN UNREASONABLE RISK TO
THE HEALTH, SAFETY OR WELFARE OF THE BENEFICIARIES OF SUCH SERVICES.

S. 3016--B 6

(d) WHERE THE SUBJECT INDIVIDUAL IS A NATURAL PERSON OPERATOR OF A
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER, OR A PERSON OVER
THE AGE OF EIGHTEEN WHO IS TO RESIDE, OR RESIDES, IN A FAMILY CARE HOME
OR FAMILY BASED TREATMENT PROVIDER:
(I) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME IDENTIFIED IN PARAGRAPH (A) OF
THIS SUBDIVISION, THE AUTHORIZED AGENCY SHALL PROMPTLY ADVISE THE
AUTHORIZED PERSON OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT
PROVIDER THAT IT SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM PERMIT-
TING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO RESIDE IN
THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER, UNLESS
THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDIVIDUAL WILL NOT IN
ANY WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR
CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER.
FAILURE TO COMPLY WITH THIS DIRECTIVE SHALL, AS APPLICABLE, CONSTITUTE
GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE OR REMOVAL OF THE OPERAT-
ING CERTIFICATE OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT
PROGRAM IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN OR THIRTY-
ONE OF THE MENTAL HYGIENE LAW; OR
(II) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME OTHER THAN ONE IDENTIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY PROMPTLY
ADVISE THE AUTHORIZED PERSON OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT PROVIDER IT SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM
PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO RESIDE
IN THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER IF,
AFTER PERFORMING A SAFETY ASSESSMENT THE AUTHORIZED AGENCY DETERMINES
THAT THE SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE HEALTH, SAFETY, OR
WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT PROVIDER. FAILURE TO COMPLY WITH THIS DIRECTIVE SHALL, AS
APPLICABLE, CONSTITUTE GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE,
OR REMOVAL OF THE OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
(III) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT
INDIVIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME IDENTIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY SHALL, AS
APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE IN ABEY-
ANCE UNTIL THE CHARGE IS RESOLVED, OR REQUIRE A SAFETY ASSESSMENT OF THE
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER TO BE PERFORMED, AND
SHALL DIRECT THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER OF
ANY ACTIONS THAT MUST BE TAKEN TO ENSURE THAT THE SUBJECT INDIVIDUAL
WILL NOT IN ANY WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF THE
CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT
PROVIDER. FAILURE TO PROMPTLY IMPLEMENT SUCH ACTIONS BY THE FAMILY CARE
HOME OR FAMILY BASED TREATMENT PROVIDER SHALL CONSTITUTE GROUNDS FOR
REMOVAL OF ITS OPERATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS
OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
(IV) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME OTHER THAN ONE IDEN-
TIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY,
AS APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE IN
ABEYANCE OR REQUIRE A SAFETY ASSESSMENT OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER TO BE PERFORMED, AND MAY DIRECT THE FAMILY
CARE HOME OR FAMILY CARE TREATMENT PROVIDER OF ANY ACTIONS THAT MUST BE
TAKEN TO ENSURE THAT THE SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE

S. 3016--B 7

HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE
HOME OR FAMILY BASED TREATMENT PROVIDER. FAILURE TO PROMPTLY IMPLEMENT
SUCH ACTIONS BY THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER,
IF DIRECTED TO DO SO, SHALL CONSTITUTE GROUNDS FOR REMOVAL OF ITS OPER-
ATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN
OR THIRTY-ONE OF THE MENTAL HYGIENE LAW.
(E) Prior to making a determination to deny an application [or
renewal,] or directing [an employer] A PROVIDER to deny employment OR
VOLUNTEER SERVICE, the authorized agency shall afford the subject indi-
vidual an opportunity to explain, in writing, why the application should
not be denied. IN ITS DISCRETION, THE AUTHORIZED AGENCY MAY ALSO
DIRECTLY CONTACT A SUBJECT INDIVIDUAL FOR ADDITIONAL INFORMATION IN THE
EVENT HIS OR HER CRIMINAL HISTORY INFORMATION REQUIRES CLARIFICATION.
[(e)] (F) Upon receipt of criminal history information from the divi-
sion, the authorized agency may request, and is [entitled] AUTHORIZED to
receive, information pertaining to any crime identified in such criminal
history information from any state or local law enforcement agency,
district attorney, parole officer, probation officer or court for the
purposes of determining whether any ground relating to such crime exists
for denying an application, renewal, or employment, AND PROVIDED
FURTHER, THAT WITH RESPECT TO CRIMES COMMITTED IN THE STATE OF NEW YORK,
SUCH AUTHORIZED AGENCY IS ENTITLED TO RECEIVE SUCH INFORMATION.
[(f)] (G) The authorized agency shall thereafter promptly notify the
provider concerning whether its check has revealed any criminal history
information, and if so, what actions shall or may be taken by the
authorized agency and the provider. SUCH NOTIFICATION SHALL INCLUDE A
WRITTEN SUMMARY BY THE AUTHORIZED AGENCY OF THE CRIMINAL HISTORY INFOR-
MATION PROVIDED BY THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTI-
GATION. THE WRITTEN SUMMARY SHALL INCLUDE A NOTATION OF ANY OUTSTANDING
CHARGES, IF ANY, ABOUT WHICH THE AUTHORIZED AGENCY IS AWAITING FURTHER
INFORMATION CONCERNING THE FINAL DISPOSITION OF SUCH CHARGES. THE
AUTHORIZED AGENCY SHALL SUPPLEMENT SUCH NOTIFICATION WHEN THE AUTHORIZED
AGENCY RECEIVES INFORMATION FROM THE DIVISION RELATING TO A SUBJECT
INDIVIDUAL AS PART OF THE SEARCH AND RETAIN PROCESSING CONDUCTED BY SUCH
DIVISION OR WHEN THE AUTHORIZED AGENCY RECEIVES INFORMATION RELATIVE TO
THE FINAL DISPOSITION OF AN OUTSTANDING CHARGE.
[(g) Where the authorized agency denies the application for or renewal
of an operating certificate, contract, approval or other authorization
to provide services, or directs a provider to deny employment of the
subject individual on account of the subject individual's criminal
history information, the notification by the authorized agency shall
include a summary of the criminal history information provided by the
division.]
(h) IN THE EVENT THAT THE INFORMATION OBTAINED BY THE AUTHORIZED AGEN-
CY FROM THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTIGATION INDI-
CATES THAT EITHER ENTITY HAS NO CRIMINAL HISTORY INFORMATION WITH
RESPECT TO THE SUBJECT INDIVIDUAL, THE AUTHORIZED AGENCY SHALL NOTIFY
THE PROVIDER THAT SUCH INDIVIDUAL HAS NO CRIMINAL HISTORY INFORMATION
RECORD.
(I) Where the authorized agency directs a provider to deny employment
OR VOLUNTEER SERVICE based on criminal history information, the provider
must notify the subject individual that such information is the basis of
the denial. WHERE THE AUTHORIZED AGENCY DENIES THE ISSUANCE OF AN OPER-
ATING CERTIFICATE, CONTRACT, APPROVAL OR OTHER AUTHORIZATION TO PROVIDE
SERVICES BASED ON CRIMINAL HISTORY INFORMATION, THE AUTHORIZED AGENCY

S. 3016--B 8

MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF
THE DENIAL.
6. [Upon request from an employee who has already been cleared for
employment by an authorized agency and who subsequently leaves a partic-
ular employer and applies for employment with another, the authorizing
agency shall adhere to its previous authorization when the criminal
history information is unchanged and the circumstances of employment are
substantially similar for the purposes of this section.
7.] Any criminal history information provided by the division, and any
summary of the criminal history information provided by the authorized
agency to [an employer] A PROVIDER pursuant to this section is confiden-
tial and shall not be available for public inspection; provided, howev-
er, nothing in this subdivision shall prevent an authorized agency or
provider from disclosing criminal history information at any administra-
tive or judicial proceeding relating to the denial or revocation of an
application, employment, license or registration. Where the authorized
agency denies the application for or renewal of an operating certif-
icate, contract, approval or other authorization to provide services, or
directs a provider to deny employment OR VOLUNTEER SERVICE of the
subject individual, the subject of the criminal history information
check conducted pursuant to this section shall be entitled to receive,
upon written request, a copy of the summary of the criminal history
information provided by the authorized agency to the provider, IF ANY
SUCH SUMMARY WAS SO PROVIDED.
[8.] 7. A provider shall advise the authorized agency when a subject
individual is no longer subject to such check. The authorized agency
shall inform the division when a subject individual is no longer subject
to such check so that the division may terminate its retain processing
with regard to such individual. At least once a year, the authorized
agency shall be required to conduct a validation of the records main-
tained by the division, including information obtained from the federal
bureau of investigation [pursuant to article twenty-eight-E of the
public health law] and provide such results to the authorized agency for
purposes of updating the permanent record of such criminal history
information results.
[9.] 8. Provided that an authorized agency or a provider reasonably
and in good faith complies with the provisions of this section, there
shall be no criminal or civil liability on the part of and no cause of
action for damages shall accrue against any authorized agency, provider
or employee thereof on account of, arising out of or relating to crimi-
nal history information pursuant to this section, or any act or omission
relating to criminal history information pursuant to this section.
[10.] 9. Fingerprints received by the division pursuant to this
section shall be used only to assist the division in providing criminal
history information to authorized agencies under this section.
[11.] 10. An authorized agency or provider authorized to request crim-
inal history information pursuant to this section may temporarily
approve an applicant while the results of the criminal history informa-
tion check are pending, so long as such person does not have unsuper-
vised physical contact with clients, as shall be defined by the author-
ized agency pursuant to regulation; provided however, that providers
subject to the provisions of subdivision ten of section twenty-eight
hundred ninety-nine-a of the public health law shall be subject to the
supervision requirements provided therein. [Such regulation shall recog-
nize the differences in the staffing patterns of various service models
and the supervision required to ensure the safety of clients.

S. 3016--B 9

12.] 11. The authorized agency in consultation with the commissioner
shall promulgate any rules and regulations necessary to implement the
provisions of this section, which shall include convenient procedures
for persons to promptly verify the accuracy of their NEW YORK STATE
criminal history information and, to the extent authorized by law, to
have access to relevant documents related thereto.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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